Should Florida let patients smoke medical marijuana? A judge will now decide

In dramatic testimony, two patients who treat their debilitating diseases with marijuana testified in court Wednesday that although they qualify to receive the drug legally, they are alive only because they break the law and smoke it.

Diana Dodson of Levy County, who has HIV and neuropathy, and Cathy Jordan of Manatee County, who has Lou Gehrig's disease, urged Leon County Circuit Court Judge Karen Gievers to overturn the state's ban on smoking medical marijuana, arguing that the forms the state allows don't do them any good.

"In '86, I was given three to five years to live and I'm still here,'' said Jordan, 68, seated in a wheelchair in the front of the court, her voice scratchy and weak from her ailment.

She testified that to treat her disease, she breaks the law and grows the plants in her backyard. She said that she "can't do edibles" — a form of medical marijuana that is allowed in Florida — because they "cause terrible, terrible muscle pain in my stomach," and vaping, the alternative to smoking, makes her gag. Smoking, however, increases her appetite, dries her excess saliva, and calms her muscles, she said. "It just makes my life a lot more bearable."

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Jordan, who has been on a crusade to legalize medical marijuana since she was diagnosed with her disease 31 years ago, said her doctors are not concerned about the risks associated with smoking "because I'm still alive."

Gievers asked Jordan if she would obtain marijuana legally if smoking weren't banned by law. "That's why I joined this case,'' Jordan replied.

Cathy Jordan, a Sarasota resident with Lou Gehrig's disease, is among those suing the state for banning smoking as a way of using medical marijuana. She testified in court Wednesday that smoking is the most effective way to treat her pain and symptoms.

He filed suit on behalf of the patients and two advocacy organizations asking the court to invalidate the law passed by the Florida Legislature and signed by Gov. Rick Scott to implement the amendment because it violates the intent of the constitutional amendment passed by voters in 2016.

The trial Wednesday lasted three hours and ended with Gievers promising a swift ruling because of what she considered the "time urgency" of the case. She also said she expects her decision is likely to be appealed.

Florida voters approved Amendment 2 authorizing the use of marijuana as a medical treatment for people with debilitating medical conditions, with 71 percent voting yes. But lawmakers limited its scope by directing patients who qualify to obtain medical marijuana to use only oils, sprays, tinctures, vaping and edibles.

Lawmakers excluded smoking as a method for medical treatment, arguing that smoking would be a "backdoor attempt" at allowing recreational use.

Morgan, who calls Jordan "a Florida hero" for her relentless crusade, argued that banning smoking as a method of using medical marijuana amounted to trampling on the intentions of voters who voted for the constitutional amendment.

"Today we saw a woman, literally fighting for her life, hoping to be able to smoke marijuana to be able to dry up her saliva so she doesn't choke and die on her own spit,'' Morgan said after the trial ended. "The State of Florida, who is here to protect our lives, is in fact trying to take her life — and so many like her, and so many who will be like her."

Jon Mills, attorney for the plaintiffs, said the definition voters approved included "all types of medical marijuana, including flowers, which is smokeable marijuana.

"The Constitution of the State of Florida promised the ability of people with debilitating conditions to seek treatment through medical marijuana, including smokable medical marijuana,'' he said. "If the state is able to prohibit smokable marijuana, why shouldn't they be able to prohibit vaping? Why shouldn't they be able to prohibit edibles? Why shouldn't they be able to prohibit medical marijuana?"

Rachel Nordby, the lawyer for the state, argued that the implementing law is "entirely consistent" with the Constitution because the state "has a role in setting parameters and it can absolutely base those parameters on health and safety concerns."

"The Legislature here has enacted a law that embodies reasonable safety concerns of medical use,'' she said, adding that it "contemplated that it was making the flower form available through vaping."

"This case is not about what is or what is not marijuana,'' she said. "What this case is about is the permissible plain uses of marijuana.

"Here, there are no material facts in dispute,'' she said, adding that plaintiffs lacked standing in the case because the members of the advocacy group People United for Medical Marijuana did not authorize the lawsuit and Dodson had not obtained a doctor's permission to use marijuana.

Orlando attorney John Morgan spoke to reporters before the trial Wednesday against the state challenging the law that prohibits smoking as a form of medical marijuana. He financed the campaign to make medical marijuana a constitutional right and is backing the lawsuit.

Mary Ellen Klas meklas@miamiherald.com

Morgan, whose younger brother was paralyzed as a teenage lifeguard after a diving accident, believes that smoking “is a medically effective and efficient way" to administer the active chemicals in cannabis for patients. He poured more than $4 million into the campaign to pass the amendment and is now bankrolling the lawsuit.

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Dodson told the court that she used medical marijuana in California after she couldn't keep other medications down for her symptoms. She said she has used all forms of cannabis, including oils and vaping.

"Smoked cannabis works best for me,'' she testified. "It's easier to get the amount that I need and i don't get too much in my system."

She said that vaping is "about 50 percent less effective and you had to ingest quite a bit more." Depending on the preparation, oils are less easy to control, she said.

Jordan said doctors have told her that her lungs are at 78 percent, "which is unheard of for an ALS patient" and she credits it to smoking marijuana for 30 years.

She said she suggested once to her doctors that she quit for three to four days to see what happened and they told her not to because it might bring on problems that could not be reversed.

Morgan, who uses the hashtag #NoSmokeIsAJoke, argues that the legislative claim has been a “bogus argument from Day 1,” and that if legislators were truly interested in keeping the public safe from smoking, they would have taxed tobacco “to the hilt.”

Ben Pollara, treasurer for People United for Medical Marijuana who managed the successful campaign to pass the amendment, testified that the amendment contemplated that it would allow patients to smoke marijuana. "I don't think we considered anything otherwise,'' he said.

The Department of Health's Office of Medical Marijuana Use, which is tasked with enforcing and overseeing the law's implementation, has been dogged by delays in getting the measure working for patients.

Among the problems have been a backlog in identification cards for patients and slowdowns in approving dispensing licenses and promulgating various regulations. The office has also struggled to roll out guidelines on a variety of issues related to the new law, including edibles.

The office's head, Christian Bax, has blamed the delays in part on lawsuits and administrative challenges, although the office also failed to respond to questions from a joint committee of lawmakers for months. The silence frustrated lawmakers during the legislative session so much that they voted in the upcoming year's budget to hold back $1.9 million in salaries and benefits to pressure it to move faster on implementing parts of the law.

If Morgan's lawsuit prevails, the state Department of Health would be tasked with writing rules regarding the new directive.

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas and Elizabeth Koh can be reached at ekoh@miamiherald.com and @elizabethrkoh.